Lim Yang Hoon v Ong Keh Keong (BA-33-306-05/2021)

(1) Where two or more causes or matters are pending, and if it 2 appears to the Court that— 3

some common question of law or fact arises in both or all of them;

the rights to relief claimed therein are in respect of or arise out of the 5 same transaction or series of transactions; or 6

for some other reason it is desirable to make an order under this 7 rule, the Court may order the causes or matters to be consolidated on 8 such terms as it thinks just or may order the causes or matters to be 9 tried at the same time or one immediately after another or may order any 10 of the causes or matters to be stayed until after the determination of any 11 other of the causes or matters.” (emphasis added) 12 13 [11] The law on consolidation has been explained in the Federal Court’s 14 decision in Central Securities (Holdings) Bhd v Haron b Mohamed 15 Zain [1979] MLJ 244 where Raja Azlan Shah CJ (Malaya) (as he then 16 was) explained as follows: 17 18 “The main purpose of consolidation is to save costs and time, and 19 therefore it will not usually be ordered unless there is “some common 20 question of law or fact bearing sufficient importance in proportion 21 to the rest” of the subject matter of the actions “to render it desirable 22 that the whole should be disposed of at the same time” (Payne v 23 British Time Recorder Co [1921] 2 KB 16, Howoodv British Statesman 24 Publishing Co. Ltd [1929] WN 38, Daws v Daily Sketch [1950] 1 WLR 25 126; [1960]1 All ER 397). Where this is the case, actions may be 26 consolidated where the plaintiffs are the same and the defendants 27 are the same.” (emphasis ours). 28 29 [12] Hence the rationale behind the consolidation is to save time and 30 costs and to avoid duplicity. 31 32 [13] The circumstances described in Order 4 rule 1 are to be read 1 disjunctively. This was decided in Ng Joo Soon @ Nga Ju Soon v 2 Devechem Holdings (M) Sdn Bhd & Ors [2010] 1 LNS where the Court 3 held as follows: 4 5 “(a) the circumstances described in O. 4 r. 1 under which an 6 application for consolidation may be considered are disjunctive. 7 Any one condition would suffice;

almost all case law on O. 4 r. 1 involved the same parties who 9 are embroiled in different concurrent proceedings, be it as 10 plaintiff, defendant or third party;

the fact that the same solicitors and counsel act in both cases, 12 and they and the main witnesses are resident in the same place, 13 though these make for convenience and the saving of costs, they 14 are, not pertinent’ 15

the actions are between the same plaintiffs and substantially the 16 same defendants, though of different legal entities and what is 17 more important involve a common question of facts.” 18 19 [14] The practice of consolidating two petitions is common in other 20 jurisdictions. In Halsbury’s Laws of England Volume 13, 4th Edn, at 21 p 408, Paragraph 860 it is stated that: 22 23 “860. Consolidation. Where there are cross-petitioners on the file or 24 where there are two petitions by the same petitioner, it is the practice 25 for registrars, on the application of one party or, in default, at the 26 instance of the registry, to give notice to the solicitors for all the parties 27 that the two suits will be tried together unless there is some valid 28 objection” 29 30 Contentions and Decision of the Court 31 [15] The RH’s objections to the consolidation may be summarized thus: 32

the PW cannot avail herself to both judicial separation and 1 petition for divorce at the same time as this will be an abuse 2 of court process;

(ii) the PW has to elect either to continue or withdraw the Judicial 4 Separation Petition after filing the Divorce Petition as the 5 reliefs sought in the Divorce Petition will supersede the 6 separation order applied in the Judicial Separation Petition. 7 8 [16] The above mentioned objections were similarly raised in the RH’s 9 Notice of Application in Encl 79 to strike out the Judicial Separation 10 Petition pursuant to Order 18 rule 19(1)(a), (b), (c) and/or (d) ROC 2012. 11 12 [17] The RH did not appeal against the Court’s decision to dismiss Encl 13 79. 14 15 [18] After perusing the evidence before me, I found that both the PW and 16 RH did not specifically deny the following facts of this case: 17 20.1 The parties and the children are the same I both the 18 Judicial Separation Petition and the Divorce petition. 19 20.1.1 The same issues are disputed in both the petitions which 20 are: 21 20.1.2 the irretrievable breakdown of the marriage; 22 20.1.3 the guardianship, custody, care, control, access and 23 maintenance of the children; 24 20.1.4 the PW’s spousal maintenance; and 25 20.1.5 the division of matrimonial assets 26 20.1.6 save and except for the prayer for a judicial separation 27 decree in the Judicial Separation Petition and the prayer 28 for a dissolution of the marriage in the Divorce Petition, 29 all other prayers in the former are the same and/or 1 related as all the other prayers in the latter. 2 3 [19] It is therefore safe to say that all the elements set out in O. 4 r. 4 have been fulfilled. I am satisfied that the causes of action for the two suits 5 are similar in nature and the facts are the same. 6 7 [20] Apart from all the matters enumerated above, I also noted that the 8 Judicial Separation Petition and the Divorce Petition are at the relatively 9 same stages of the litigation process. No trial dates have been fixed. Pre- 10 trial directions are yet to be issued and the suits are still at the stage of 11 disposing interlocutory applications. 12 13 [21] I am in full agreement with the PW’s contention that the 14 consolidation will save costs, time and effort as it will be most convenient 15 to treat both petitions as one cause. Having the matters consolidated is in 16 line with the objective of securing a just, expeditious and economical 17 disposal of proceedings. More importantly it will avoid the risk of the Court 18 making different findings of law and/or facts on the same issue. 19 20 [22] I do not share the RH’s trepidation that the application if allowed to 21 be consolidated will cause havoc to the administration of justice as the 22 PW is allowed to seek overlapping reliefs, an order for judicial separation 23 and decree nisi at the same time. The RH’s complain is that it will be 24 confusing and chaotic to the RH and to the Court is untenable and without 25 merits. 26 27 [23] I further hold that the consolidation if allowed will not amend the 28 PW’s pleadings in the Judicial Separation or the Divorce Petition. The 29 amendment does not affect the identity or the existence of the cases that 30 have been consolidated, or the status of the parties to the suits nor does 1 it affect the pleadings. This view is supported by the decision in the case 2 of Osaka Resources Sdn Bhd & Ors v Foo Holdings Sdn Bhd [2013] 3 CLJU 984 where the Court of Appeal held as follows: 4 5 “[11] It is trite that the main purpose of consolidation is to save, costs, 6 time and effort, and to make the conduct of several actions more 7 convenient by treating them as one action, it is not a process to improve 8 the pleadings or prayers or to borrow or adopt the prayers of one party 9 to the advantage of the other, etch. The proposition of law stated in 10 respect of amendments to pleading in the case of Janagi v Ong Boon 11 Kiat [1971] 2 MLJ 196 will equally apply to consolidated proceedings. 12 Sharma J in that case asserted that: 13 “It is not the duty of the court to make out a case for one of the parties 14 when the party concerned does not raise or wish to raise the point. In 15 disposing of a suit or matter involving a disputed question of fact it is not 16 proper for the court to displace the case made by a party in its pleadings 17 and give effect to an entirely new case which the party had not made out 18 in its own pleadings.” 19 [12] It is also well established that a consolidation order does not affect 20 the identity or the existence of the cases that have been consolidated or 21 the status of the parties to the suits nor does it affect the pleadings. (see 22 Bangsar Bina Sdn Bhd v Manzeer Medical [2004] 7 MLJ 1). 23 Consolidation order may bring all interested and necessary parties 24 before the court but that does not necessarily mean short comings in the 25 pleadings can be cured or improved without proper application for 26 amendment.” 27 28 [24] In light of the abovesaid reasons, I see no reason why the 29 application for consolidation in Encl 7 should not be allowed. 30 31 32 33 Encl 21 – The Injunction Application 1 Introduction 2 [25] Parties entered into a consent Order dated 12.11.2021 agreeing to 3 Prayers 1, 2 and 6 of the PW’s Summons in Chambers. 4 5 [26] The Ad Interim Order dated 12.11.2021 is reproduced below (see 6 Encl 33): - 7 8 9 1 1 2 [27] By mutual consent the parties have agreed that Prayer 3 of Encl 21 3 shall be the sole remaining prayer to be dealt with on an inter parte basis. 4 Prayer 3 is for the following orders: 5 “3. that the Respondent shall return the access card of the Prima Sixteen 1 Condominium to the Petitioner’s solicitors within 7 days from the date 2 this order is served on him or his solicitors’ firm” 3 4 Brief Facts Pertinent to Encl 21 5 [28] The PW claims that the marriage between her and the RH has 6 broken down irretrievably because the RH has behaved in such a way that 7 the PW cannot reasonably be expected to live with him alleging that the 8 RH was physically, psychologically and emotionally violent to her and the 9 two children of the marriage. 10 11 [29] The RH left the matrimonial home on 21.2.2018 and has not 12 returned. 13 14 [30] The PW and the children reside at B-0303 Prima Sixteen 15 Condominium at Seksyen 16, Petaling Jaya, Selangor. She is the primary 16 care-giver for the 2 children. 17 18 [31] The PW has alleged that on 30.10.2021 at around 6 pm, the RH 19 unexpectedly came to the matrimonial home, shouting the names of the 20 children and banging on the grill door. After about 20 minutes the RW went 21 away but left 3 orange plastic bags of foodstuff outside. The PW stated 22 that the actions and conduct of the RH had put her in fear for herself and 23 the safety of the children. 24 25 [32] The PW filed the Notice of Application in Encl 21 on 1.11.2021 and 26 an ex-parte order was granted on 3.11.2021. The RH applied for an 27 extension of time to file his affidavit in reply to oppose Prayer 3 and this 28 was duly granted. 29 30 Contentions and Decision of the Court 1 [33] The application that concerns this Court in Encl 21 is essentially to 2 do with Prayer 3 thereof i.e. for an inter partes interim interlocutory 3 injunction to compel the RH to return the access card to the Prima Sixteen 4 Condominium home. 5 6 [34] The guidelines in determining an interlocutory injunction should be 7 granted or otherwise in any given case has been set out in Keet Gerald 8 Francis Noel John v Mohd Noor b Abdullah & Anor [1995] 1 CLJ 293. 9 The questions which the Court must ask and consider are the following:- 10

whether the totality of the facts presented before 11 him discloses a bona fide serious issue to be tried;

(ii) Where the balance of convenience lies;

(iii) Whether damages are an adequate remedy. 14 15 [35] The RH’s argument to oppose the application is that the PW did not 16 file any reply against his Affidavit in Support affirmed on 11.3.2022 which 17 was referred by the RH in the Notice of Intention to Use Affidavit dated 18 28.7.2023. The RH relies on the case of Ng Hee Thoong v Public Bank 19 Bhd [1995] 1 MLRA 48 where it states that it is trite law that if there is no 20 reply to a positive assertion then it will be deemed an admission. In 21 applying this principle to the instant case, the RH submits that the PW has 22 admitted to all the assertions by the RH in his affidavit i.e. that the Ad 23 Interim Order is oppressive, filed in bad faith and is an abuse of court 24 process to deny the RH of his right of access to his two children. 25 26 [36] It is the RH’s stand that the Ad Interim Order which he agreed to on 27 12.11.2021 as regards prayers (1) and (2) until the inter partes hearing 28 does not affect his rights to object to the entire Encl 21 during the inter 29 partes hearing. The RH stated that it is common for parties to agree to the 30 terms of the ad interim order until the inter partes hearing and this was 1 recognized by the apex court in Petrodar Operating Co Ltd v Nam Fatt 2 Corporation Berhad & Anor and Another Appeal [2012] 8 CLJ 311 3 where it was held as follows: 4 5 “It is the standard practice of our courts, that after the grant of the ad 6 interim injunction (pending the inter partes hearing) to move on to the 7 hearing of the inter partes injunction. Parties will then ventilate all issues 8 and their respective contentions in the inter partes hearing of the 9 injunction itself. In this regard we are reminded of the observations 10 made by his Lordship Abdul Hamid Mohamed JCA (as he then was) 11 in RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2022] 12 1 MLRA 493 which we are inclined to adopt in similar vein. His 13 Lordship Abdul Hamid Mohamed JCA noted that the Ad interim 14 injunction to maintain the status quo pending the inter partes 15 hearing is quite often agreed between the parties. Even if they do 16 not agree the court has the jurisdiction to make such an order. The court 17 has the jurisdiction to grant the ad interim injunction even in the event 18 the parties disagree. From the observations made by His Lordship Abdul 19 Hamid Mohamed we can safely conclude that in the interest of smooth 20 and expeditious administration of justice, parties should expeditiously 21 move forward to the hearing of the inter partes injunction on the merits.” 22 23 [37] It is therefore the RH’s contention that the Ad Interim Order he 24 consented to on 12.11.2021 as regards prayers (1) and (2) until the inter 25 partes hearing did not affect his rights to object to the entire Encl 21 during 26 the inter partes hearing. 27 28 [38] The PW disagrees with the RH’s contentions abovesaid. It was 29 contended that it is clear from the Ad Interim Order dated 12.11.2021 30 (para 26) that parties entered into a consent order for Prayers 1 and 2 of 31 Encl 21. The only remaining prayer i.e. Prayer 3 was ordered to be heard 1 inter partes. 2 3 [39] The PW also contended that the RH did not address the issue of the 4 access card prayer (Prayer 3) in his affidavits. Only submissions from the 5 bar by the RH was given. This averment was never inserted and affirmed 6 in an affidavit. In regard to the issue of the access card the RH merely 7 affirmed at Paragraph 34 of his written submissions (Encl 104) as follows: 8 9 “34. In addition, it must be noted that Respondent has the right to use 10 the access card to visit his eldest brother, Dr Ong Keh Aun who resides 11 at Block A of Prima Sixteen Condominium which shares the same 12 entrance to the Matrimonial Home.” 13 14 [40] In the circumstances it was submitted that in the absence of the 15 RH’s sworn statement to rebut the fact that he possesses the access card 16 of the matrimonial home, prayer 3 ought to be allowed by this Court. 17 18 [41] In examining the arguments raised by both parties in the context of 19 the guidance laid down in Keet Gerald’s case, I had to first consider what 20 took place during the hearing of Encl 21 on 1.11.2021, 3.11.2021 and on 21 21.11.221. I will have to take note from the chronology of events leading 22 up to the hearing before the previous High Court Judge. I was of the view 23 that it is crucial to study the minutes of the case in order to establish what 24 took place on those dates when the parties came before the Learned 25 Judge of the Family Court. 26 27 [42] My examination of the minutes of the records of proceedings show 28 the following events unfolding. After the PW filed Encl 21 on 1.11.2021 on 29 an ex parte basis, she was granted an ex parte order on 3.11.2021. 30 [43] Then on 12.11.2021 the PW and RH entered into a consent order 1 and the terms of the consent order can be seen in Encl 33 (para 26). Encl 2 33 clearly states that the only remaining prayer to be dealt with on an inter 3 partes basis is this: 4 5 “AND IT IS HEREBY FURTHER ORDERED THAT:

Prayer 3 of Encl 21 shall be heard inter partes.” 7 8 [44] I took particular note of the Learned Judge’s minutes of the Notes 9 of Proceeding recorded on 21.11.2021 which I have set out below: 10 11 “R : Yes, in the meantime the only issue we have for the orders My 12 Lady is that ah Paragraph 3 ah … Paragraph 3 My Lady ah seek for the 13 return of the access card, which ah I do not have … so uh… 14 YA : Hold on ah. 15 R : I pray for that to be amended. 16 YA : Hold on ah. Para 3, so you ah what is your suggestion for Para 17 3 then? 18 R : Ah probably to have ah Paragraph 3 to be deleted My Lady since 19 the … 20 YA : I see. 21 R : …access card is not in my possession. 22 YA : Okay is that all? 23 R : My My Lady at the same time the we have ah ah put in a request 24 ah for proposed settlement … 25 YA : Okay, and is there anything else? 26 […] 27 P : We only have a statement from the bar that he has no access 28 card. May we deal with this at the inter partes? So ah this will not form 29 part of the ad interim? 30 YA : Okay. 31 P: But it should not be deleted. 32 YA : Okay, so what about the 1 month, as requested? 33 P : If we have an ad interim My Lady, we we we have no objection. 1 YA : So you have no objection. 2 P : Yes.” 3 4 [45] From the excerpts above it is all too clear that Her Ladyship had 5 allowed the RH an extension of time to file his affidavit in reply to oppose 6 specifically to Prayer 3 which is for the return of the access card. 7 8 [46] Having considered the issue carefully, I find that I cannot agree with 9 the RH’s arguments that it is still open to him to object to the entire Encl 10 21 during the inter partes hearing. 11 12 [47] The situation in this instant case is not like that of the circumstances 13 found in the Petrodar Operating case cited by the RH. The facts in that 14 case are easily distinguishable from the instant case. In the particular 15 circumstances of this case before me, the previous Learned Judge had 16 recorded the consent of parties to Prayers 1 and 2. The parties agreed 17 that only Prayer 3 of Encl 21 shall be heard inter partes. I would therefore 18 respectfully decline to accept the RH’s arguments on this matter. In my 19 view Prayers 1 and 2 are no longer open for further argument as it had 20 been agreed to by the parties. If it were otherwise, the RH would have told 21 the Learned Judge on 12.11.2021 that he only agreed to the terms until 22 he could argue the matter in the inter partes hearing. I am of the view that 23 the consent to Prayer 1 and 2 was entered into in an inter partes capacity, 24 in the presence of the RH and that consent will stay until after the divorce 25 proceedings are disposed off. 26 27 [48] Turning now to the relief sought in Prayer 3, it is impossible to ignore 28 the fact that the RH did not make any sworn statement in respect of him 29 not having possession of the access card of the matrimonial home. The 1 PW had averred as follows in relation to the access card prayer: 2 3 “36. As the Respondent had moved out of the Matrimonial Home 4 since February 2018, he ought to return the access card to the 5 Prima Sixteen Condominium. Retaining the said access card 6 allows the Respondent to continue to stalk and harass the 7 Petitioner and the Children at will.” 8 9 [49] To this, the RH merely averred as follows in reply: 10 11 “54. Saya menafikan perenggan 36 Afidavit Sokongan sebaliknya saya 12 berkata saya telah dihalau dari Rumah Kahwin dimana sejak Februari 13 2018 ibubapa Pempetisyen telah datang tinggal di bilik saya di Rumah 14 Kahwin sehingga sekarang maka, saya terpaksa duduk di rumah 15 Seksyen 17.

Seterusnya, dalam bulan Mac – April 2019, Pempetisyen telah 17 memindahkan kesemua barang-barang saya ke Rumah Seksyen 17 18 dan Pempetisyen telah menukar kunci manga Rumah Kahwin untuk 19 menghalang saya daripada mempunyai akses kepada anak-anak, 20 jelasnya saya telah dihalau dari Rumah Kahwin atas niat buruk 21 Pempetisyen.” 22 23 [50] The RH did not dispute that he had the access card to the 24 condominium. Nowhere did the RH affirm that he no longer had the 25 access card in his possession. 26 27 [51] On the other hand, the PW has been able on a balance of 28 probabilities to show that the RH is using an access card to enter the 29 compound of the matrimonial home. This was averred by the PW in her 30 Additional Affidavit affirmed by her on 15.8.2023 (Encl 99) Para 8.1: 31 32 “8.1 From the excel sheet, I observe that the Access Card was used to 1 enter the Matrimonial Home compound on 30 October 2021 from around 2 6.29 p.m. to 8.10 p.m. consistent with the Respondent’s entry and exit 3 time.” 4 5 [52] In the light of the positive assertion by the PW, the failure of the RH 6 to contradict that assertion will be treated by the court as an admission by 7 him of the fact so asserted (see Ng Hee Thoong, supra). 8 9 [53] It is also noted that the RH admitted that he did come to the 10 matrimonial home on 30.10.2021. He affirmed to the following in his 11 affidavit in Encl 34: 12 13 “16. Oleh kerana saya telah dinafikan hak akses kepada anak-anak 14 sejak 28.2.2021 maka, pada 30.10.2021, jam lebih kurang 6.00 pm saya 15 telah pergi ke Rumah Kahwin di Unit B-3-3 Prima 16 Condominium, 16 Petaling Jaya untuk berjumpa dan memberi makanan dan buah- 17 buahan kepada anak-anak.

Walaupun saya beberapa kali memanggil nama Soon Aik dan Soon 19 Hing tetapi mereka tidak datang untuk buka pintu atau menjawab, maka 20 saya telah tinggalkan 3 beg plastic mengandungi antara lainnya, buah 21 nangka, 2 biji kelapa muda dan sayur-sayuran diluar pintu. Sebelum 22 beredar, saya sempat mengambil gambar 3 beg plastic tersebut. 23 Sekarang ditanda gambar sayuran dan buah dalam beg-beg plastic 24 sebagai Eksibit B.

Seterusnya, saya telah pergi ke kolam renang untuk berenang 26 sebelum pulang ke Rumah Seksyen 17. Sepanjang masa saya berada 27 di Prima 16 Condominium, saya tidak tahu mengenai laporan polis yang 28 dibuat oleh Pempetisyen dan/atau kehadiran peguamnya ke Prima 16 29 Condominium.” 30 31 [54] In view of the fact that the RH has not denied that he had used an 32 access card to enter into the matrimonial home compound, I find that the 33 PW has proven all 3 elements of the guidelines referred to in Keet Gerald’s 1 case in considering whether an interim injunctive remedy should be 2 allowed or not. 3 4 Conclusion 5 [55] In light of the foregoing and after closely scrutinizing the applications 6 for consolidation and interim injunctive reliefs and examining all evidence 7 adduced before me, I allowed Encls 7 and 21 with costs. 8 9 Dated 25 March 2024. 10 11 12 13 14 (JULIE LACK) 15 Judge 16 High Court of Malaya 17 Shah Alam, Selangor Darul Ehsan 18 19 20 21 22 23 24 25 26 27 28 29 30 Counsel 1 For the Petitioner : 2 Honey Tan Lay Ean 3 (MESSRS. SEIRA & SHARIZAD) 4 5 For the Respondent : 6 Ong Keh Keong 7 (MESSRS. ONG PARTNERSHIP) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33